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17
Court of Criminal Appeal 7 March 2016

Ingrey v R

[2016] NSWCCA 31

Assault & violenceFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL NEED TO RE SENTENCE FAMILY BACKGROUND TAKEN INTO ACCOUNT AGE OF APPLICANT

Citation: Ingrey v R [2016] NSWCCA 31
Court: Court of Criminal Appeal, NSW
Date: 7 March 2016
Judges: Hoeben CJ at CL; Adams J; Fullerton J

Background

The applicant, an Aboriginal man, was convicted after trial of one count of attempted robbery armed with a dangerous weapon (a shotgun) under the Crimes Act 1900. The offence occurred in August 2012 when he and a co-offender entered a hotel at Botany and demanded patrons get on the ground. During a struggle, the shotgun discharged, though no one was seriously injured. The applicant was 19 at the time and was identified partly through listening device recordings made while he was in custody.

The sentencing judge in the District Court imposed a sentence of 10 years imprisonment, commencing December 2016, with a six-year non-parole period. Special circumstances were found, adjusting the ratio of non-parole to total sentence to 60 per cent.

The applicant sought leave to appeal on the basis that the sentencing judge failed to give adequate weight to the social disadvantage he experienced growing up in the La Perouse community, including exposure to crime, violence, and substance abuse from an early age.

  • Whether the sentencing judge adequately took into account the applicant's social disadvantage arising from his upbringing and community environment at La Perouse
  • Whether that failure, if established, constituted error warranting appellate intervention and re-sentencing
  • What sentence was appropriate when all relevant factors, including social disadvantage, age, criminal history, and the objective seriousness of the offence, were properly balanced

Decision

The Court of Criminal Appeal found that the sentencing judge, while recounting the applicant's background in considerable detail, did not adequately treat social disadvantage as a mitigating factor when actually imposing the sentence. The expert reports before the court, particularly those of the forensic psychologist, were described as unusually frank and comprehensive. They documented the applicant's exposure from early childhood to crime, interpersonal violence, substance abuse, and antisocial norms within his extended family and the broader La Perouse community. The Court held this amounted to an error sufficient to warrant re-sentencing.

In re-sentencing, Hoeben CJ at CL applied the principles established in cases including Bugmy v The Queen and R v Fernando, which recognise that social disadvantage and its effects on an Aboriginal offender's background are relevant mitigating considerations, even where the offender's prospects of rehabilitation are poor. The Court took into account the applicant's age at the time of the offence, his exposure to criminal activity during his formative years, and the potentially crushing effect of the sentence he was already serving for other offences.

Against those mitigating factors, the Court weighed the objective seriousness of the offending. The presence of a loaded shotgun that actually discharged during the robbery attempt was a significant aggravating feature. The applicant's lengthy criminal history, lack of remorse, poor compliance with supervision, and ongoing drug use in custody were also weighed. General and personal deterrence, as well as community protection, remained important considerations.

Balancing those competing factors, the Court reduced the sentence from 10 years to 9 years, with the non-parole period reduced from 6 years to 5 years. The level of concurrency with the sentences the applicant was already serving was also increased.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • The sentence imposed by King SC DCJ on 16 February 2015 is quashed
  • In lieu thereof, the applicant is sentenced to 9 years imprisonment, commencing 13 December 2015, with a non-parole period of 5 years expiring 12 December 2020
  • The balance of term is 4 years, expiring 12 December 2024

Key Takeaways

  • A sentencing court that recounts an Aboriginal offender's background of social disadvantage in detail may nonetheless err if that disadvantage is not given genuine mitigating weight when the sentence is actually fixed.
  • Principles from Bugmy v The Queen and R v Fernando require that social disadvantage and its formative effects on an offender's development be recognised as mitigating factors, even where rehabilitation prospects are assessed as poor and the offender shows no remorse.
  • The Court of Criminal Appeal confirmed that the potentially crushing effect of a sentence, particularly where an applicant is already serving other terms, is a legitimate consideration on re-sentencing.
  • Objective seriousness, criminal history, lack of remorse, and the need for general deterrence remain relevant counterweights and do not disappear because social disadvantage has been established.
  • In reducing the sentence, the Court of Criminal Appeal also adjusted the level of concurrency with existing sentences, demonstrating that the totality of the offender's custodial exposure is part of the sentencing calculus.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(2) and 344A(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- R v Fernando [1992] 76 A Crim R 58
- R v Henry [1999] NSWCCA 111; 106 A Crim R 149
- Callaghan v R [2006] NSWCCA 58
- Jinnette v R [2012] NSWCCA 217
- House v R [1936] HCA 40; 55 CLR 499